Tag Archives: uniform code of military justice (UCMJ)

What’s new in Conscientious Objector law?

Deborah Karpatkin

Deborah Karpatkin

By Deborah H. Karpatkin

The years 2005-2011 saw a number of federal court cases considering habeas corpus applications from military conscientious objectors.  These cases were ably considered in Steve Collier’s excellent article in the March 2011 issue of On Watch.

Today, with the military reducing its personnel and combat activity, we are, not surprisingly, seeing fewer CO applications. Indeed, we know of no reported habeas cases from military COs after the Fourth Circuit’s decision in Kanai v. McHugh.1

Nevertheless, a review of recent cases may be valuable for practitioners and counselors, in these four respects.

First, each of the four appellate CO habeas decisions of the Afghanistan-Iraq era – Aguayo v. Harvey, Hanna v. Secretary, Watson v. Geren, and Kenai v. McHugh (citations at endnotes 2, 7, 9, 13, respectively) – has generated some additional law. Attention to these leading CO cases offers some insight into how courts will apply their holdings in future CO litigation.

Second, recent case law offers opportunities for practitioners and counselors seeking remedies for the hardships faced by unsuccessful COs.

Third, courts continue to be unwelcoming to cases challenging selective service registration on CO grounds.

Finally, the term “conscientious objector” continues to have legal vitality in a range of non-military CO cases, which in turn may influence the judges who decide our military CO cases.

James M. Branum on Democracy Now, June 4 2014

MLTF’s James Branum interviewed by Amy Goodman on Democracy Now!

MLTF member (and past co-chair) James M. Branum, an attorney in Oklahoma City, was a guest on Democracy Now! to talk about Bowe Bergdahl and the legal rights of war resisters. “There Were No Good Options”: Bergdahl Should Get Honorable Discharge, Says Lawyer. Follow link for transcript; video after jump.

New MLTF memo on Article 138 complaints

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Servicemembers can complain about wrongs done to them by their command under Article 138, UCMJ. Although this is a powerful tool, few people know about it. This memo gives an overview of the complaint procedure and discusses some of the differences among the service branches.

Access the memo in the version of your choice, using the buttons on the right.

Military (In)Justice: Real problems, phony answers (Op-Ed)

This article is an official statement of the Military Law Task Force and represents its views. The author is a founder of the Task Force, and currently serves on its steering committee.

In the aftermath of the reports that Air Force Lt. Gen. Craig Franklin, exercising his prerogative as convening authority (CA), overturned the aggravated sexual assault (i.e. rape) conviction of Lt. Col. James Wilkerson, Defense Secretary Chuck Hagel is calling for a change in the Uniform Code of Military Justice to remove that power. Hagel’s initiative (if one could call it that) fails to do anything substantive to address the real potential for abuse in the powers that inhere in the CA, while depriving court martial defendants of a protection that has existed virtually since the founding of the Continental Army.

As the accused’s commanding officer, the CA holds a unique place in American criminal jurisprudence and can choose to have an undue, if not determinative, influence over the outcome of a court martial. Among other powers, the CA selects the officer to conduct the Article 32 preliminary investigation, the members of the court, approves charges and specifications and designates the judge. It is hoped that these powers will be exercised neutrally, but they open the door for command influence, direct or subtle, which far more often inures to the disadvantage of an accused than the rare times that a conviction is set aside. An overhaul of the entire system, including the power of the CA to reduce sentences and reverse findings, is long overdue. Indeed, the old saying that military justice is to justice what military music is to music is attributable, in large part, to the decisive influence the CA is able to exercise. Parenthetically, the other reason the military “justice” system is so skewed, despite the substantial and extensive due process rights that an accused has, is that everything carries potential criminal liability. Nowhere else can someone be prosecuted, for example, for being late to work.

Army Times article notes troops’ presence in Occupy movement, cites MLTF

An article was published in the November 18, 2011 issue of Army Times, Navy Times, et. al. (Gannett-owned publications that serve the military community) that highlighted how off-duty servicemembers and veterans are participating in the Occupy movement across the country.
‘Occupy’ protests lure veterans

Joining the ranks of hundreds of Occupy offshoots that have sprouted up in cities across the country, veterans are enlisting in the grass-roots movement in increasing numbers, even ascending to leadership positions.

They are also among the movement’s first casualties.

A sidebar article offers insight into the rights of military personnel and veterans to protest.

Military officials said troops are free to participate in Occupy rallies but are prohibited from wearing their uniforms or presenting themselves as official spokespeople for the military.

That goes for those who have been discharged from active duty or drilling Reserve units but are still in the Individual Ready Reserve. All service members incur an eight-year obligation to the military — regardless of contract length — and are subject to involuntary recall from the IRR at any time during that period.

While it’s rare for veterans in IRR status to be charged for violating uniform rules, it’s not unheard of.

MLTF Executive Director Kathleen Gilberd was interviewed for this piece, and her contribution helped clarify the the concerns of troops and commanders alike.

Even when they aren’t technically breaking any rules, troops can find themselves facing repercussions, legal experts said.

“Commanders can sometimes get a little overzealous when they see someone at a protest on TV that they don’t like,” said Kathleen Gilberd, executive director of the Military Law Task Force, a San Diego-based advocacy group. “The rights are pretty clear, so often what happens is commands will informally harass them.”

Troops should be especially wary of attending protests where violence is likely, she said.

“The regulations say you shouldn’t go to a demonstration where violence or a ‘breach of the peace’ is likely to occur. But that’s pretty vague,” Gilberd said.

And commanders shouldn’t use that rule as a catchall to keep troops from attending rallies they don’t like.

“They can’t just say ‘don’t go there’ because they think something might happen,” Gilberd said.